Tag Archives: not criminally responsible

Richard Kachkar’s not criminally responsible verdict has divided observers and is fueling the debate on Bill C-54, the Bill to make NCR reviews more restrictive.

There are those who feel that the NCR decision was the right, though imperfect one.

And there are those who are angered by the verdict. They feel that justice was not done; that the jury was duped; and worst of all, that Kachkar’s life is going to be spared while that of his victim was not. To them, a finding of “not criminally responsible” is equal to a full acquittal, a get-out-of-jail free card, a verdict of no repercussions for Kachkar and his actions.

But an NCR finding is not tantamount to escaping justice. And it is not a ticket to freedom. It is the best, albeit imperfect, response that we have to people whose severe mental illness rendered them incapable of formulating the kind of intent that we believe is necessary before someone can be convicted of a criminal offence.

What does an NCR finding really mean?

In legal terms, an NCR finding means that the person who committed an act suffered from a major mental illness at the time of commission of the act, and, as a result of the illness, she or he either did not have the mental capacity to appreciate the nature and quality of the act or did not know that the act was wrong.

In layperson terms, such persons are often delusional or haunted in a manner that makes them out of touch with the reality of what they were doing or why they were doing it.

And, despite the impression that a number of highly-publicised NCR cases may leave, NCR findings are rather rare.

While many people who commit crimes often suffer from varying degrees of mental illness, most of those persons would not qualify for an NCR finding. (Neither would they want to be found NCR, given the severe consequences of such a verdict.)

Before an NCR finding is made, one or more psychiatrists meet with and assess the accused person, and examine all the information available about him from before and after the offence. The psychiatrists’ conclusions, along with any other psychiatric findings, are presented to the court. The court then decides whether or not the person was NCR: whether or not the person suffered from a mental disorder, and that disorder made him or her unable to appreciate the nature and quality of his actions or render him incapable of knowing that the act was wrong.

The consequence for the NCR person, while not as draconian as a jail term, is still severe, still restrictive, and still results in deprivation of her liberty.

In theory, a person who has been found NCR is not supposed to spend any time in jail. In reality, people who have been found NCR often do spend days, weeks, or sometimes even months in jail while awaiting a bed in one of our over-burdened mental health institutions.

After a first assessment, NCR persons often spend years in a psychiatric facility in order to get treatment. They are locked up in these so-called hospitals, until such time as a Review Board deems them safe enough for some form of a leave.

The Review Board is comprised of lawyers, judges, psychiatrists or psychologists, as well as a member of the general public. When an NCR person appears before them for a review (which is currently done on an annual basis), the Review Board examines an array of information, focusing on the treatment the person has received, their progress, their current mental health and their prognosis. The Board considers public safety when deciding whether or not to grant the person some kind of release, be it a permanent one or in the form of escorted day passes.

Review Boards do not make their decisions casually. They know the stakes. They also know that the person before them committed the acts that they did because they were sick. Once that illness is under control, the person no longer poses a risk to society.

Keep those mentally ill people who have recovered from their disease institutionalized longer, as Bill C-54 would, and you endanger their recovery, overburden our already taxed mental health institutions, and keep others who need those beds in jails rather than in hospitals.

But as Bill C-54 and the reactions to the Kachkar verdict prove, many of us continue to look at the mentally ill with suspicion. We wonder if their illness really played a role in their behaviour. Even if we believe that it did, we are doubtful that such persons can ever really be safe. And so, we believe that the NCR finding lets guilty people get away with a horrible crime. These are understandable doubts and fears, but the available facts and data should alleviate these concerns.

In reality, a person who has been found NCR is serving an indeterminate sentence: he does not know when the sentence will come to an end. He is not free to roam in public at any time; he is institutionalized and locked up. And while he may not carry with him the stigma of a criminal conviction, he will always wear the stigma of having committed a heinous act, and of having suffered from a mental illness so severe that he lost touch with reality and committed a horrendous act. His future will forever be shaped and negatively impacted by this horrible disease and event.

The tragedy of a lost life will not be avenged through the punishment of a person who did not fully and consciously intend to cause that loss. Convicting and forever locking up Kachkar and others like him will not bring healing or justice to the victims. It will only make all of us, who do have the full use of our rational faculties, responsible for convicting a person who was too ill to recognize the nature, severity, and consequence of his actions.

It feels like a week does not go by without the Harper government’s introduction of a new law or initiative purportedly aimed at making our “streets and communities safe.” Rather than make us safer, however, these crime and punishment laws are leading us toward disaster.

Criticism by the public and experts to these moralistically-named bills has been loud, clear, and supported by evidence. With a majority in Parliament, however, the Conservatives see little value in listening to the sage advice and admonishments of Canadians.

A complete list of all the bills and changes would go well into the hundreds. Instead, here is a quick reference of some of the most significant and damaging laws enacted by the Harper government:

1. The “Tackling Violent Crimes Act” sounds like a story title from a Marvel comic strip, but it’s the Haper government’s one-size fits all answer to crime: “Jail everybody. Jail them longer.”

The more prisons “solution,” is combined with the government’s utter failure to do anything constructive to address the causes of crime, or to address the fact that overcrowding in prisons and that incarceration result in much violence and increased recidivism.[i]

A portion of this legislation quickly became the subject of a Charter application in R. v. Smickle.In that case, Leroy Smickle, a young man with no criminal record, was alone one evening at his cousin’s home (he had not joined his cousin to go out as he had work the next day), in his boxers and undershirt, while holding the gun he found at the residence. He was foolishly posing with the gun for a Facebook picture in front of a computer that was on his lap, when the cops burst in, with the intention of arresting the cousin. For his foray into showing off a gun to no live persons, he faced a minimum jail sentence of 3 years, if convicted.

The trial court struck down the portion of the law that left an accused person open to this kind of harsh sentence for a first offence for an act that posed a danger to no one (but the accused).

The Crown has appealed the case. The appeal is being heard as I write this article. So the fate of the accused and the law are yet undetermined and uncertain.

What is certain to all who are familiar with the evidence, however, is this: jail sentences and higher jail sentences not only do not reduce crime and recidivism, but in some cases they actually increase the likelihood of recidivism.

Prior to the enactment of this law, sentencing judges in some jurisdictions counted an offender’s pre-trial custody time as more than 1:1. There were good reasons for this.

Conditions in pretrial detention centres are notoriously worse than those where inmates serve their sentences: overcrowding, sleeping on floors within inches of dysfunctional toilet bowls, an absence of educational or counselling programs, lengthy lock-downs which keep inmates in cells for 20-24 hours a day, unsanitary conditions that expose prisoners to disease, the legal and moral problems with incarcerating people when they have not even been found guilty, and the psychological ramification of awaiting a trial while in custody. Judges, who observed the recurrence of these harsh conditions concluded that it was necessary to count pre-trial detention as more than 1:1.

But the Conservatives contended that when courts granted someone 2 for 1 credit for pre-trial custody, they were misleading the public as to the actual sentence. They felt that they had to step in to make judges and the criminal justice system more “honest.” So the law essentially prohibits judges from counting pre-trial custody as more than 1:1 when sentencing an offender.

In passing this legislation, however, the Conservatives not only removed judicial discretion in sentencing –an act which they have repeated many times since 2010—but they also hid from the public the truth about jails, jail conditions, and the factors that judges consider when they determine the appropriate sentence for someone.

The result is greater overcrowding in our jails, unjust discrepancies in sentencing, and even less accountability for the shameful conditions in some of our jails.

The law results in greater unfairness since, because of our parole laws, persons who have spent time in pre-trial custody (often because they don’t have the resources or the community support to get bail), will end up serving a longer jail term for the same offence, when compared to those who received the exact same sentence, but had been out on bail before their trial. Most Canadians would deem this discrepancy unfair. But this is, in fact, the result of the Truth in Sentencing Act.

Then things got worse.

Soon after they gained their majority in the legislature, the Harper government rolled all their various crime bills into one giant Omnibus bill, called the “Safe Streets and Communities Act,” or Bill C-10. The many offensive portions of this bill came into force at different times during the last year.

The next 5 items are the poisonous branches of the Omnibus tree.

3. Increased sentences and mandatory minimum sentences for a range of drug offences:

The most criticized portion of this bill is that which subjects a person who grows 5 or more cannabis plants to a maximum jail sentence of 6 months or 5 years, depending on a number of legal factors.

The evidence that the war on drugs is destructive and a failure is abundant. Many people who were once advocates of the war on drugs warn that we must change how we deal with the presence of drugs in our society, and have spoken out against these futile and destructive measures. (See the Sundance Film Festival Grand Jury Winner documentary film, The House I Live In by Eugene Jarecki. http://www.youtube.com/watch?v=a0atL1HSwi8 )

4. The removal of conditional sentences (generally known as house arrest), another Bill C-10 gem:

Until recently, conditional sentences had the support of both Liberals and Conservatives. They were seen as a cheaper, more effective method of rehabilitation and reintegration of offenders, as a means of ensuring that otherwise safe people could remain employed, remain with their families, and obtain the support that they needed, while being held accountable for their offences.

Conditional sentences recognize a few research-based realities: jails are generally ineffective tools for reducing recidivism; in some cases, jails increase the chances of recidivism; they are costly and unaffordable in society; they are oppressive; and there are better means of advancing societal goals of crime reduction than incarceration.

Judges, who were most familiar with the offender and the circumstances of the offence, could determine whether or not a conditional sentence was suitable for a particular individual.

But Bill C-10 eliminated this sensible option for many offences, including ones such as car theft or the theft of expensive items by first-time offenders.

5. No Christian forgiveness from a party with strong ties to religion:

Before March of 2012, a person who had been convicted of a crime, but had spent a designated number of years afterward as a law-abiding citizen, could apply for a “pardon.” If granted, his record would be cleared, his job prospects improved, his contribution to society could be increased.

Now, however, an eligible person can apply, not for a pardon, but for a “record suspension.” This is more than a mere matter of semantics. The label tells it all: if you have once been convicted, no matter how long ago the offence was committed, not matter how you have behaved since then, you will never be able to start over clean.

6. How else can we oppress your stay while you are incarcerated? Penalize a wider range of conduct while you are in custody.

Bill C-10 has also expanded the range of conduct that could get an inmate into trouble. One new offence: being “disrespectful toward a person in a manner that is likely to provoke them to be violent.” You know, like swearing at someone. Disciplinary offences can lead to a range of consequences, including segregation.

7. Punish our children more as well:

The crime and punishment ideology extends into the Harper government’s dealings with those who especially need our protection and guidance, young people. The law places a greater focus on punishment and incarceration in the sentencing of young offenders.

Prior to the enactment of Bill C-10, the focus of sentencing judges in youth court matters was rehabilitation and reintegration of young offenders. Judges must now, however, focus on denunciation and deterrence. The principles of denunciation and deterrence generally call for incarceration. This is a significant departure from Canadian values and government focus over the past few decades, and runs counter to all our knowledge and experience when it comes to how to best deal with young persons who come into conflict with the law.

7. Make the underlying objectives of the Youth Criminal Justice Act more punitive:

The primary principles underlying our old Y.C.J.A. were to prevent crime by addressing the circumstances underlying a young person’s offences, to rehabilitate and reintegrate them, and to subject the young persons to “meaningful consequences,” all with a view to promote the long-term protection of the public.

The new Act, however, shifts the principles behind the Act, making “protection of the public” and “accountability” the primary focus of the Act. “Protection of the public” and accountability are generally seen as cues for treatment of young persons, and requiring a greater focus on pre-trial detention.

With Bill C-10 passed and its various portions now being law, the Harper government moved on to other crime legislatin.

A person who suffered from a major mental disorder at the time of the commission of their crime, in some cases, may be found to be “not criminally responsible.” Such persons are indefinitely institutionalized, until such time as a panel of experts (a Review Board) determines that these persons no longer pose a significant risk to society and that they have control over their illness.

The Harper government, however, is pushing for longer institutionalization and decreased focus on rehabilitation and reintegration. Review Boards considering whether or not an NCR person should be released are now to make public safety the “paramount concern.” Furthermore, they are no longer to impose the least onerous and restrictive conditions during a disposition hearing, but are to impose what is “necessary” and “appropriate.” The words alone are not harmful, but the message is clear: review boards should shift toward continued institutionalization and should shy away from a measured release of individuals.

The result will not only be greater overcrowding of our mental health institutions, which already lack sufficient resources and function at full capacity, but also greater imprisonment of persons with mental health disorders in our regular prisons, since there will not be sufficient room for them at our mental health institutions.

A bigger prison population. Longer terms of incarceration. Little to no investment in the kinds of social services and education that can help to reduce crime. No support for alternatives to the criminal justice system, such as restorative justice. Others have traveled this road. And they warn us about the disaster toward which we are quickly heading.

But no matter, the tough talk is still getting votes. So why let evidence and experience get in the way of ideology?

[i] “Do Sentences of Imprisonment Reduce Reoffending Rates for Either Men or Women?” Criminological Highlights, Volume 13, Number 2 (February 2013) Centre for Criminology and Social Studies, University of Toronto.

Say one thing, do the opposite. That sums up the Canadian government’s approach to the treatment of the mentally ill in the criminal justice system.

“(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities.” Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012. He made this sweeping and dramatic claim in the wake of the release of the Ashley Smithvideos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews’s comments might give an observer hope – hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012. In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be “not criminally responsible,” or NCR, by the courts if this person was unable to “appreciate the nature and quality of his actions” at the time of the offence.

People who are found NCR receive an indefinite sentence. Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment. A panel of experts then annually reviews the inmate’s progress to determine if her mental illness is under control, and if it is safe to release her.

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe. As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions. That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems. Despite that, it will not be the worst offender for putting the mentally ill in jail. A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed “Truth in Sentencing Act” of 2009, which restricted a judge’s ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction. Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons. The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year. Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person’s mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000.00, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health. The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40% of the incarcerated population suffers from a mental disorder. These health problems cannot and will not be remedied in jail. On the contrary, the mental health of these people will often be more acute than before they entered state custody. But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that’s where they’re going.

There is little to no logical connection between the government’s words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.